3.4 Focus Groups for Early Case Analysis

Where case budgets merit it, another great way to refine your story lines and persuasive theories is by using focus groups early and often. The use of focus groups to pretry cases became commonplace in the 1990s.

Early in the pretrial process focus groups can be used to determine what issues or questions jurors will likely have in response to your basic narrative of the case. These, in turn, can be used to direct discovery to answer those questions. Your goal is to determine the categories of facts the jury or ultimate fact-finder would need to hear about and the witnesses they would need to hear from. Just as in the brainstorming process described below, the goal of these focus groups is to ascertain likely first impressions of the facts and merits of a case in order to determine the values and beliefs associated with those first impressions. Once these have been identified, these values and beliefs can serve as guideposts for the litigation.

There are several methods that you can use to take advantage of what a focus group can teach you about the reception it is likely to receive from a fact-finder.⁴ Each method has a number of common features.

1. the selecting of approximately a dozen people from a fair sampling of the community or a similar community from which the jury will eventually be selected;

2. members of the focus group should be paid for their time so that they remain committed to the process;

3. the convener should also have the focus group members sign confidentiality agreements covering all they learn during the process, as they will be significant participants in determining case theory and, at later junctures, in testing case theory;

4. the lawyer should arrange to contact the group members within a certain time period after the process, usually within ten days, to follow up with questions about the process;

5.

6. also, for that reason, the focus group sessions should not be held at the offices of an interested law firm.

At the beginning of the session you should ask the members of the focus group to provide you with basic demographic information: job status, marital status, children, where they live, level of education. Some who run focus groups feel that you should also survey the members for how they feel about the control they exercise over events in their lives. Samuel Solomon of Doar Communications, believes that this is one of the most revealing values tested. With respect to this particular value, people generally fall into two distinct categories: they either believe that events are within their control or that events are outside their control. Solomon believes that how in control people feel will impact virtually every decision they make about the meaning of facts and any conclusions to be drawn from them.

Once this and other relevant core values are identified, each group member is assigned a number; whenever a group member speaks, the member must identify himself or herself by that number. If you don’t lead the session, it is important for you to be able to view the session without disturbing the communication between the leader and the focus group. One way is to set up a video camera with a feed to a remote room. Or, the entire session can be videotaped for later viewing (and/or transcribed if you would rather read what has been said, than listen to the video). These ground rules apply to all the focus group methods that follow.

1. The first focus group method is particularly helpful early in a case, to help direct the fact investigation that will follow. The session leader usually begins by describing what is known about the case in as neutral terms as possible.

Key to this early focus group is for the leader to make specific inquiries regarding what information the group would like to find out and which people they would like to hear from before making a decision in the case. If the group asks questions that can be answered, the questions should be answered. If the leader does not know the answer to a question, the leader must communicate this to the group. Furthermore, the leader must honestly inform group members when the information requested does not exist and explain why it does not exist, if the reason is known (e.g., the plaintiff destroyed the papers). At the end of the session, the group members should vote for the party they believe should win the case and state their reasons for their votes. Approximately two weeks later, the group members should be contacted to gain any additional thoughts or insights they have about the case.

2. The second focus group method is more like feeding a fire by adding fuel a little at a time. You don’t dump too much on the fire all at once, for fear of putting it out. It begins with the statement of several facts. After getting an initial response, the leader adds more facts, and seeks reactions from the group. The process continues with the leader unpacking the facts of the plaintiff’s case and getting group members’ reactions to the facts as well as their assumptions made from the facts.

3. The third method is usually done later in the case. Its focus in on how to educate the jury about a legal or technical matter that is key to the outcome of the case. Often understanding of the jury instructions is vital to the outcome of the case. While this method works in any case it is particularly helpful in a case in which the jury will ultimately be required to apply the law and interpret facts that are outside the normal range of experience. For that reason, and unlike a negligence case based on fault, the judge’s instructions gain heightened importance because jurors are more likely to listen carefully and apply the instructions with greater precision.

Not surprisingly then, this focus group method begins with the leader’s presenting for the group, the elements of the claim or defense that must be proved at trial and that will be contained in the judge’s instructions. Group members are first asked to react to the judge’s charge by stating which of the elements is most important and why. The leader then makes a statement of the facts of the case, again containing at a minimum the three best and worst facts elicited during brainstorming. With this background, the group should respond to the question whether there have been sufficient facts to prove the elements required by the judge’s instruction. From this point on, the session is much like that described in the first focus group method, where the group members ask the leader questions and identify information they would like to have and the people they would like to hear from before making the decisions required of them by the judge’s instruction.

By using any of these three methods or other similar methods, the lawyer uncovers those lines of inquiry that need to be followed through informal and formal discovery. Because the hot points for the jury are better known, both informal and formal discovery can be efficient, as the lawyer can direct discovery toward information likely to be persuasive for a fact-finder in the case. The focus group process also identifies witnesses from whom the fact-finder would like to hear at trial. In the rare case, the results of a focus group might even mitigate against filing the lawsuit at all, or at least against relying on a particular theory. And even for bench trials, there are organizations that can provide experienced, retired judges—with judicial records similar to that of the trial judge who will hear the case at hand—to participate in a focus group designed to identify facts and witnesses the trial judge will likely want to hear in the case.

Focus groups provide litigators with the information to be able, at an early stage in litigation, to identify relatively sophisticated factual theories of the case regarding what really happened and why. It may even be possible to reject potential factual theories because of the lack of positive response in focus group testing. In addition, the focus group process may also suggest legal theories of recovery and defense that are so problematic that they might be better off dropped from the lawsuit. At any rate, the information gathered from all the sources we describe in this article should prepare the lawyer to take the next steps in the lawsuit—steps guided by a well-informed fact investigation plan that is built on the solid foundation of what juries want to hear.

The exercise of brainstorming can be very useful to both the end game story telling, whether it is at a negotiation or trial, and also earlier before interviewing or deposing key witnesses. Brainstorming is recommended by many creative problem solvers in business, science, education, government, and law. It is based on the notion that what unimaginative problem solvers often do is to too narrowly focus on a story or fact and miss the significance or the possibilities presented by connecting facts to other major facts.

One way to demonstrate problem solvers’ tendency to narrow their focus too quickly is by taking a look at the following simple problem. Assume that you have been asked to solve the following problem: Connect the nine dots below using just four straight lines without your pen ever leaving the page.

Connect the nine dots below using just four straight lines without your pen ever leaving the page.

The problem is unsolvable if the problem solver sees the dots themselves as a boundary of operation. Now consider one solution shown below. Note that the key is to extend the lines out beyond the boundary created by the dots.

Other professions also struggle with a decision maker’s tendency to narrow too quickly. Our medical and business colleagues have the same difficulties with misdiagnosis. Whether the tendency to narrow too early comes from a lack of planning time, or the impatience to wade through all the facts, or from a style of learning that is uncomfortable to that decision maker, (in Myers Briggs-terminology,⁵ they may be a “judger” and have a low tolerance for the process of joint open thinking) there are obviously some real risks in recommending factual theories without engaging in some comprehensive thinking. One way of combating narrowing too quickly, and combating certain learning preferences that make it difficult for some to think more openly, is to engage in a step-by-step process called “brainstorming.”

A system of brainstorming that has proven very useful to trial lawyers has seven parts to it, proceeding from listing “good facts” to “bad facts,” “best facts” to “worst facts,” “engaging in spin control,” and the final step, that of selecting a “theme.” We will take each step in order.

3.4.1.1 Good Facts

Set yourself up in a room where a group of your colleagues can also see a blackboard, whiteboard, or some common surface to record ideas. Designate a recorder. Then encourage members of the group to call out facts that in their mind are helpful to the case. Don’t edit the ideas. Debate and ranking will come later. Now just get all the good facts out on the board.

One useful addition to this process is for the recorder to reflect back the idea to the proposer for two purposes. First, it is important that the recorder records the person’s facts and not his interpretation of the facts. Second, the recorder should make sure he is recording facts and not inferences from those facts. For example, it would be incorrect at this stage to record as fact that Cosham assured Addington that Manhattan’s policy covered termite infestations. Instead, the group should call out facts that support the inference that he made such assurances—that he wanted to sell the policy, that Addington was looking for this kind of coverage, and that Cosham’s notes include the word termites with a double underline and question mark.

In addition, the recorder can be aware that he serves a very important function by making the brainstormer be precise with his facts. By being sensitive to the fact/inference distinction, the problem solver can be careful to be precise, and record for later reference from where the individual ideas are coming. In serving this role the recorder keeps wishful thinking from taking over the process. Many group planning sessions can be effected by a kind of “group tough” phenomenon where someone throws what may be a fact and the group latches on to it, and starts to plan as if that fact were proven. This was demonstrated in the recent auto products liability case where the defense latched onto a, “The plaintiff would have died anyway even if the gas tank had not exploded because he was dead at impact” theory. The problem was that no one had bothered to interview one of the eye witnesses to determine that the plaintiff was seen steering the pickup over the side of the road after impact. You can imagine their factual theory would not fly in the face of such a counter fact.

3.4.1.2 Bad Facts

In addition, or simultaneously, the group should also call out bad facts. The recorder can decide to try and hold all bad facts until after the good facts are exhausted, but often the group recognizes that some facts are both good and bad, depending on the spin one puts on them. For example, a recent startup’s two years in the business can be good if it makes them the David against a Goliath, a multi conglomerate. It can be bad if it implies inexperience and inability on their part. Often recorders divide the board in half and record bad facts as well as good facts.

This process of calling out good and bad facts can take some time. If the history of the case is lengthy and somewhat complicated, the recorder might break the brainstorming process into segments according to a time line. This can be particularly helpful for getting the brainstormers to reflect more broadly on the early history of parties, damages issues, or “subsequent remedial measures” issues that they might otherwise miss. The recorder should be careful to hear from everyone in the room. Also, it is often in the waning moments that someone thinks of something “new” or missed, or tries out an idea that may give everyone a new perspective. Give time for the individuals to exhaust their ideas.

As the recorder looks back at the board, he or she should next encourage the group to look for connections. Are there groupings of facts that belong together? Are there connections that others had not seen before?

3.4.1.3 Best Facts

At this point the group should start to prioritize and focus on what is most important. One exercise has each brainstormer select the three facts he finds most important. Ask each person to write them down, and prepare to defend his choices. Then go around the room and have the individuals vote and briefly explain their vote. See if there is any consensus. Where there are differences, see whether through persuasion and discussion the parties can come to agree on what are the most important facts. Point out that these decisions will be very important for focusing their presentations of facts.

3.4.1.4 Worst Facts

The same process should be employed with regard to worst facts. This is important again so that the litigators don’t prematurely disregard important bad facts that mitigate against their client’s position. Next, the discussion should turn to the rules of evidence and motions in limine. Is there any way to keep out the bad facts? Is their any way of narrowing the focus of the dispute so that the bad facts become irrelevant?

Alternatively, is there now a need for more discovery? What counter facts are there to find? What additional facts may mitigate or overcome the otherwise bad facts? In other words, the Worst Facts brainstorming should involve a process very much like political spin control.

3.4.1.5 Spin Control

There are a number of spin control options persuaders should consider. One is to simply admit the bad fact. Perhaps a word of explanation is in order here. Remember the movie, Clear and Present Danger, starring Harrison Ford as Jack Ryan, advisor to the president and all around good guy? The President has called his advisors to counsel him on what to tell the press regarding his connection to a man who was recently found murdered off the coast of Florida, in a boat filled with cocaine. Ryan comes late to the meeting, but just in time to hear some advice from an aide that the President deny that he even knows the man. We also see others advising the President to say as little as possible and saying “no comment.” Ryan speaks up and advises that the President simply admit he was a very good friend of the man and felt terribly that he has died. In justification for his advice he says, in essence, if you admit simply, then what is to investigate? The matter will end there.

Similarly, where a witness or party simply, without excuse or apology, admits the bad fact and owns up to it, it can cause numerous salutary effects. The witness looks refreshingly honest. The audience is no longer curious about the matter and may leave it alone. If, however, the witness denies the fact, and it is later proven anyway, the matter has been made twice as bad. O.J. Simpson’s argument that the picture of him in Bruno Magli shoes was a forgery is an example of how denial and accusation can be worse than admission that he used to own a pair of these shoes.

Of course another way to deal with a bad fact is to justify it or excuse it in some way. It is important, though, not to be too defensive. Referring to principles of primacy and recency, (that people remember best what they hear first and second best what they hear last, and remember less well what they hear in between) juxtaposing a bad fact with a best excuse, followed by a number of countervailing good facts, and placing the whole grouping about two-thirds of the way through your argument, can help de-emphasize the bad fact.

Also, you could deny that the bad fact happened, juxtaposing multiple facts and reasons why the bad fact could not have occurred. You compare witnesses for bias, documents for contradictions and omissions, and expert testimony for inconsistencies and overreaching. Again, if the client’s case comes out weakly, persuaders can also make sure to use juxtaposition with stronger arguments to de-emphasize the weakness.

3.4.1.5.1 Brainstorming The law

While some may believe that focusing on the law too early can hamper creative use of facts, at some point it is necessary to also return to an examination of the law to look at the match between law and facts. Brainstorming techniques are also very useful regarding legal issues. When, for example, should a business client think about bankruptcy? When might it think about agreeing that plaintiffs be treated as a class for settlement purposes? Should the business client as a defendant ever think about the benefits of taking advantage of the multi-district litigation procedures? What about removal to federal court, or vice versa. How might conflicts rules and jurisdiction and venue options effect outcomes? Could preemption arguments help? Are there motions regarding the evidence that may be useful in helping to evaluate the case? Is a Daubert motion in order? Again, what do the jury instructions say about the legal issues in the case? Might any of the instructions be in play on appeal?

What about the law regarding the jury you are likely to get? Is there a need for a jury questionnaire, and on what issues? What is the receptivity of the court to various jury selection questions? How might court rules affect the probability that you get a receptive jury?

Brainstorming these legal issues can also lead to out of the box thinking that can better help the client reach their goals.

3.4.1.6 Theme

The subject of having a theme deserves separate treatment for a number of reasons. It may be the most important way to address what will really matter to the jury. Even if one doesn’t engage in brainstorming, having a theme is vital to the lawyer’s role as persuasive story teller. What do we mean by theme, and how does a lawyer “find” or create one?

Audiences make up their minds not only with reason and logic, but also from intuition and emotion. Aristotle described persuasion as the taking of a person to a place in the mind where he felt “at home.” He called this aspect of decision making reliance on enthymemes. He described them as non rational bases of decision-making based on deeply held feelings, or on basic norms of fairness.⁶ The world is too complex and the need for decision making too great for audiences to wait for “scientific proof” before they decide what to do. Persuaders have long known this. That is why they create themes for their speeches and try to persuade with an eye on feelings and the heart, as well as the head.

Two much-discussed recent lawsuits may help make the point. In the O.J. Simpson case the defense theme was “Rush to Judgment.” The police were in a rush to judgment and they mishandled and planted evidence to reach a foregone conclusion. (A second theme also surfaced in the trial itself. This was the saying, “If it doesn’t fit you must acquit.”) The power of these themes was that they captured the underlying unfairness of the prosecution’s case, made the defendant’s points memorable, and hung the multiple parts of their legal theory together on something which was both catchy and gave the jury comfort that they were deciding the case fairly.

Another memorable example is a simple alliteration in the phrase, “King was in control.” In the first Rodney King case, police officers were tried for beating the fleeing King and were found not guilty despite a video tape that showed officers pummeling King with their night sticks. Many of the jurors were later interviewed to determine why they reached their verdict. These jurors often quoted the defense lawyer’s theme, “King was in control.” Note that none of these jurors justified their decision with the words that the police officers were acting out of justification (self defense) in beating King for refusing to lie flat after being ordered to do so. They simply felt that it was fair to require King to lie down when ordered to do so, and that he was therefore in control of the situation.

A good theme that catches the attention of the jury, gives the client’s case a feeling of unity, and speaks to the underlying unfairness or fairness of the client’s case. The power of a carefully chosen theme is well documented. Whether by advertisers who make us remember their products when we go shopping, or politicians, who repeat their campaign slogans ad nauseam, or a preacher’s sermons, or titles listed on billboards, the world is filled with persuaders who have thought about the power of a carefully chosen pitch or theme.

If lawyers agree that having a theme is important, they are of course only part way there. They must again find the particular theme that fits their case. Again, brainstorming techniques can be utilized. Everyone in your group calls out a catchy phrase, song title, biblical saying, or tries a little alliteration to try to capture appropriate theme. Another device many trial lawyers find useful is to try succinctly writing down an answer to the question, “Why is it fundamentally fair we win?” Forget the law for a minute, why is it fair or just that we prevail?

Often what happens in these sessions is the group refocuses on the best facts or worst facts in the case. Having a theme is sometimes as simple as noting an essential quote from a witness or a document. In the Homestead case, for example, it could be the use of the phrase in the contract “Perils Excluded, … this exclusion shall not apply to loss or damage resulting from such defective design or specifications, …” If the plain meaning of this provision is married with a defective termite specification, then Homestead’s theme could be one of “broken promises,” because it best sums up their position. Manhattan promised to insure it against a design defect, and now it is trying to take advantage of unstated customs in the insurance industry unknown to Homestead, to avoid living up to its promises.

One of the things that experienced lawyers tell us is that after awhile the cases they try play out on a number of recurring themes. They play out on issues of credibility of the witnesses, or the difference between direct and circumstantial evidence. They play out on the fairness or unfairness of holding someone to their burden of proof, despite the fact that someone has been injured. Other recurring themes for defendants in commercial litigation are that the plaintiff is playing some version of “the blame game”—not taking responsibility for the choices they have made. Looking back through the history of the dispute and noting the choices the plaintiff made that contributed to his own injury can help the defendant tie the case together under one unifying theme.